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Hernandez v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

April 18, 2018

TINA HERNANDEZ, as special adm'r for the estate of Ted W. Hernandez, Plaintiff,


          MATTHEW F. KENNELLY, District Judge

         Tina Hernandez sued the City of Chicago, Officer Robert Goins, and unknown Chicago Police Department officers on behalf of Ted Hernandez, after Goins fatally shot him. A jury found in favor of the defendants. Hernandez has moved for a new trial.


         On December 28, 2007, Goins, a Chicago Police Department officer, arrived at Ted Hernandez's residence in response to a 911 call. Ted Hernandez suffered from mental illness. After Goins arrived, he encountered Ted Hernandez on the roof of the residence. According to Goins, Ted Hernandez approached him with a knife, ignoring his command to stop, and Goins shot him. Ted Hernandez died from his wounds.

         Tina Hernandez sued Goins, alleging excessive force, and the City of Chicago, alleging an unconstitutional policy or practice under Monell and wrongful death. (From hereon, for sake of brevity, the Court refers to Tina Hernandez by her surname and Ted Hernandez by his full name.) During closing arguments, the City's attorney made multiple misstatements of law and evidence to which Hernandez objected and, eventually, moved for a mistrial. The Court did not rule on the motion at the time and thus effectively denied it. The jury found in favor of the defendants on each claim. Hernandez has moved for a new trial.


         To obtain a new trial under Federal Rule of Civil Procedure 59(a), Hernandez must show that "the jury's verdict resulted in a miscarriage of justice or [that] the verdict, on the record, cries out to be overturned or shocks [the Court's] conscience." Davis v. Wis. Dep't of Corr., 445 F.3d 971, 979 (7th Cir. 2006). Hernandez argues that a new trial is warranted because defense counsel, during closing argument, misstated the facts and law and made an unduly prejudicial argument. The Court applies the same two-step process for each of these purported errors: Hernandez must show (1) an error occurred and (2) the error prejudiced her case. Whiting v. Westray, 294 F.3d 943, 944 (7th Cir. 2002) (citation omitted).

         An error of this sort is less likely to be considered prejudicial if it was followed by a curative instruction. Christmas v. City of Chicago, 682 F.3d 632, 641 (7th Cir. 2012). When considering the effect of a curative instruction, the Court evaluates the timeliness and effectiveness of the instruction, as well as its significance when viewed in the context of the record as a whole. Id. (citing United States v. Humphrey, 34 F.3d 551, 557 (7th Cir. 1994)).

         All of the purported misconduct cited in Hernandez's motion for a new trial occurred during closing argument by defense counsel. The Seventh Circuit has repeatedly emphasized that movants seeking a new trial based on misconduct during closing arguments must climb a very steep hill to obtain relief. See, e.g., Smith v. Hunt, 707 F.3d 803, 812 (7th Cir. 2013) (improper statements in closing must present a "high level of impropriety and prejudice" to justify a new trial); Schandelmeier-Bartels v. Chicago Park Dist., 634 F.3d 372, 388 (7th Cir. 2011) ("We have stated repeatedly that improper comments during closing argument rarely amount to reversible error.").

         Before reviewing the errors that Hernandez identifies, the Court first notes its difficulties with Hernandez's briefs. In the memorandum supporting her motion for a new trial, Hernandez presents long, unedited excerpts of the transcript-one such excerpt consumes the entire third page of her brief-and appends cursory statements that the excerpt was a material misstatement of law or fact. She has essentially left it to the Court to try to figure out the basis for her contentions.

         I. Misstatements of law

         First, Hernandez argues that one of the City's attorneys, Barrett Boudreaux of Hale Law LLC, misstated the law during closing argument by stating that Goins was justified in shooting Ted Hernandez merely because he was holding a knife. (Here, the Court reviews both the first and fourth purported misstatements of law that Hernandez identified, as they refer to the same exchange between the litigants and the Court. See Def.'s Resp. to Pl.'s Mot. for New Trial at 11.)

         In providing expansive quotations of the transcript to the court, Hernandez does not clearly indicate which portion of counsel's argument she contends suggested that Goins was justified in shooting Ted Hernandez simply because he was holding a knife. Upon review of the record, the Court identified the following passage as the argument that Hernandez probably intended to challenge on this basis:[1]

And if you believe that Officer Goins did reasonably fear for his life at the time he fired his weapon, he is justified in that use of force. And, of course, a knife is a deadly weapon, and because expert Jeffrey Noble could not think of a specific example of an offender killing an armed police officer with a knife does not mean it doesn't happen. He told you it does ...

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